# State of U.P v. Radhey Shyam & Ors

- **Citation:** (2023) 2 ILRA 255
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-09
- **Case number:** Government Appeal No. 1581 of 1986
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-radhey-shyam-ors-49649
- **Pages:** 8

## Headnote

Law
-
The
Code
of
Criminal Procedure, 1973 - Sections
313 & 378 - Appeal in case of acquittal,
Indian Penal Code, 1860 - Section
302/34 - Murder - Powers of the
appellate Court against an order of
acquittal - while exercising appellate
powers,
even
if
two
reasonable
views/conclusions are possible on the
basis of the evidence on record, the
appellate Court should not disturb the
finding of acquittal recorded by the
trial Court - in acquittal appeals, the
appellate Court is not required to
rewrite the judgment or to give fresh
reasonings, when the reasons assigned
by the Court below are found to be just
and proper. (Para -9, 10, 11, 14)
256 INDIAN LAW REPORTS ALLAHABAD SERIES
(B) Criminal Law - The Code of criminal
procedure, 1973 - Section 378 - Appeal in
case of acquittal - appellate court is
reversing
the
trial
court's
order
of
acquittal, it should give proper weight and
consideration
to
the
presumption
of
innocence in favour of accused, and to the
principle that such a presumption sands
reinforced, reaffirmed and strengthened
by the trial court - judgment of acquittal,
where two views are possible, should not
be set aside, even if view formed by
appellate court may be a more probable
one, interference with acquittal can only
be justified when it is based on a perverse
view. (Para -18)

Four accused persons - three accused died -
appeal decided against surviving accused - PW4
was inimical to PW1 - both involved in litigation
before incident - FIR story that accused
demanded dowry from PW4 is false - trial court
has not believed the statements of PW1, PW2,
PW3 and even PW4 - conclusion of trial -
prosecution had failed to prove its case against
accused-respondents - acquittal - hence appeal.
(Para - 3,7,20)

HELD:-Evidence contradicts oral and medical
evidence. No overt act perpetrated on any of
the other accused. Concluding with the Apex
Court's judgment of acquittal. Record and
proceedings sent back to the Court below. (Para
-20,22,23 )

Appeal dismissed. (E-7)

List of Cases cited:-

## Text

2 All. State of U.P. Vs. Radhey Shyam & Ors.
255
presumption of innocence in favour of
accused, and to the principle that such a
presumption sands reinforced, reaffirmed
and strengthened by the trial court and in
Samsul Haque v. State of Assam, (2019)
18 SCC 161 held that judgment of
acquittal, where two views are possible,
should not be set aside, even if view
formed by appellate court may be a more
probable one, interference with acquittal
can only be justified when it is based on a
perverse view.

23. We have perused the depositions of
prosecution witnesses, documentary evidence
supporting
ocular
versions,
arguments
advanced by learned counsel for the parties. We
have been taken through the record. We are
unable to accept the submissions of the State
counsel for the following reasons and the
judgments of the Apex Court which lay down
the criteria for consideration of appeals against
acquittal. The chain has been found to be
incomplete. While going through the judgment
and the evidence of the witnesses we are very
clear that the medical evidence does not support
the case of prosecution more particularly
evidence at Ex. 2 and Ex. 3 which is injury
report and supplementary report, therefore, we
are of the considered opinion that the judgment
does not require any interference. The decisions
on which reliance has been placed by the
learned Judge would also apply in full force to
the facts of this case. The provisions of Section
375 read with 375(5) I.P.C will also permit us
to concur with the court below. Thus we concur
the findings of the court below.

24. Hence, in view of the matter & on the
contours of the judgment of the Apex Court, we
concur with the learned Sessions Judge.

25. The appeal sans merits and is
dismissed. The record and proceedings be
sent back to the Court below. The bail and
bail bonds, if any, stands cancelled.

26. We are thankful to learned A.G.A.
for ably assisting the Court.
----------
(2023) 2 ILRA 255
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.01.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJIT SINGH, J.

Government Appeal No. 1581 of 1986

State of U.P. ...Appellant
Versus
Radhey Shyam & Ors.
 ...Accused Respondents

Counsel for the Appellant:
A.G.A.

Counsel for the Respondents:
Sri S.A.N. Shah, Sri Akshay Kumar Shukla,
Sri Ravindra Pal Singh Kashy

(A)
Criminal
Law
-
The
Code
of
Criminal Procedure, 1973 - Sections
313 & 378 - Appeal in case of acquittal,
Indian Penal Code, 1860 - Section
302/34 - Murder - Powers of the
appellate Court against an order of
acquittal - while exercising appellate
powers,
even
if
two
reasonable
views/conclusions are possible on the
basis of the evidence on record, the
appellate Court should not disturb the
finding of acquittal recorded by the
trial Court - in acquittal appeals, the
appellate Court is not required to
rewrite the judgment or to give fresh
reasonings, when the reasons assigned
by the Court below are found to be just
and proper. (Para -9, 10, 11, 14)
256 INDIAN LAW REPORTS ALLAHABAD SERIES
(B) Criminal Law - The Code of criminal
procedure, 1973 - Section 378 - Appeal in
case of acquittal - appellate court is
reversing
the
trial
court's
order
of
acquittal, it should give proper weight and
consideration
to
the
presumption
of
innocence in favour of accused, and to the
principle that such a presumption sands
reinforced, reaffirmed and strengthened
by the trial court - judgment of acquittal,
where two views are possible, should not
be set aside, even if view formed by
appellate court may be a more probable
one, interference with acquittal can only
be justified when it is based on a perverse
view. (Para -18)

Four accused persons - three accused died -
appeal decided against surviving accused - PW4
was inimical to PW1 - both involved in litigation
before incident - FIR story that accused
demanded dowry from PW4 is false - trial court
has not believed the statements of PW1, PW2,
PW3 and even PW4 - conclusion of trial -
prosecution had failed to prove its case against
accused-respondents - acquittal - hence appeal.
(Para - 3,7,20)

HELD:-Evidence contradicts oral and medical
evidence. No overt act perpetrated on any of
the other accused. Concluding with the Apex
Court's judgment of acquittal. Record and
proceedings sent back to the Court below. (Para
-20,22,23 )

Appeal dismissed. (E-7)

List of Cases cited:-

1. M.S. Narayana Menon @ Mani Vs St. of
Kerala & anr., (2006) 6 S.C.C. 39

2. Chandrappa Vs St. of Karn., (2007) 4 S.C.C.
415

3. St. of Goa Vs Sanjay Thakran & anr.. (2007)
3 S.C.C. 75

4. St. of U.P. Vs Ram Veer Singh & ors., 2007
A.I.R. S.C.W. 5553

5. Girja Prasad (DEAD) By L.R.S Vs St. of M.P.,
2007 A.I.R. S.C.W. 5589
6. Luna Ram Vs Bhupat Singh & ors. (2009) Scc
749

7. Mookkiah & anr.. Vs St., Rep. By The
Inspector Of Police, T. N. , Air 2013 Sc 321

8. St. of Karn. Vs. Hemareddy, Air 1981 Sc 1417

9. Shivasharanappa & ors. Vs St. of Karn., Jt
2013 (7) Sc 66

10. St. of Punj. Vs Madan Mohan Lal Verma,
(2013) 14 Scc 153

11. Jayaswamy Vs St. of Karn., (2018) 7 SCC
219

12. Shailendra Rajdev Pasvan Vs St. of Guj.,
(2020) 14 SC 750

13. Samsul Haque Vs St. of Assam, (2019) 18
SCC 161

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
&
Hon'ble Ajit Singh, J.)

1. Heard learned A.G.A. for the State.

2. This appeal has been preferred by
the State against the judgment and order
dated 22.02.1986 passed Addl. Sessions
Judge, Badauna in Session Trial No. 1 of
1984 (State vs. Radhey Shiam and Others),
whereby the accused-respondents Radehy
Shiam, Lalta Prasad, Poshabi Lal and Smt.
Mada Devi have been acquitted of charges
under section 302/34 I.P.C.

3. In this appeal there are four
accused persons namely, Radhey Shiam,
Lalta Prasad, Poshabi Lal and Smt. Maya
Devi, Out of four accused persons, three
accused namely, Lalta Prasad, Poshabi Lal
and Smt. Maya Devi have died in view of
the office report dated 06.12.2022. Hence,
the appeal against accused Lalta Prasad,
2 All. State of U.P. Vs. Radhey Shyam & Ors.
257
Poshabi Lal and Smt. Maya Devi stands
abated. The appeal is being decided against
the surviving accused Radhey Shiam.

4. Briefly stated the facts of this case
are that Smt. Premwati daughter of Dori Lal
(P.W.1) was married to accused-respondent
no.1 Radhey Shyam I in April 1982.
Accused-respondent no.3 is the father and
accused-respondent no. 4 Smt. Maya Devi is
the mother and accused-respondent no. 2
Lalta Prasad is the brother of Radhey Shyam.
P.W.4 Roopram the complainant in this case
is the nephew of Dori Lal and it is said that
negotiation regarding the marriage between
Radhey Shyam and Premwati was carried by
Roopram and marriage itself took place at the
house of Roopram. After marriage, there was
regular demand of dowry i.e. a Bullet
motorcycle and a double bed by the accused
persons. Assurance was also given by Dori
Lal that their demand would be fulfilled
during his visit to Badaun on 15.4.1983 but
he could not fulfil that promise. On account
of non-fulfillment of demand, the accused
persons got annoyed and consequently
Radhey Shyam went to the hotel of Roopram
on 16.4.1983 and showed his displeasure
before
Roopram
and
Jhajhanlal.
On
17.4.1983 it was found that Premwati was in
a serious condition after vomiting and she
was actually struggling for life. She had made
an oral dying declaration also before Shyam
Sunder PW-2 and stated that she had been
poisoned by the accused persons. When
Roopram and others reached the residence of
Radhey Shyam, it was found that Premwati
has been taken to the District Hospital,
Badaun and when they reached the hospital,
they found Premwati dead. First information
report was lodged at 6.10 p.m. on the same
day.

5. After registration of the case, the
investigation was entrusted to C.O. Bisauli
on 17.4.1983. Thereafter, the inquest report
was prepared by Sri Om Prakash Tyagi,
S.I. (PW7). He received information as to
the death of Premwati at police station,
Civil Lines, Budaun at 5.05 p.m. on the
same day. On 18.4.1983 at about 7.00 A.M.
he visited the hospital and dead body was
sealed by him. The dead body was sent by
two constables for post-mortem. On the
completion of investigation, charge sheet
was submitted against the accused persons
which has been proved by him. On the
receipt of the charge sheet, the case was
registered in the court of learned C.J.M
who committed the case to the court of
Sessions and ultimately it was received in
the court of II Additional and Session
Judge, Budaun by way of transfer where
the accused persons had faced trial. On
their appearance, they stood charged for the
offence punishable under section 302/34 of
the IPC. to which they pleaded not guilty
and claimed to be tried.

6. The prosecution in support of its
case has examined the witnesses of facts
namely, Dori Lal, father of the deceased
(PW-1), Shiam Sunder, Phupera brother of
the deceased (PW-2), Jhanjan Lal and Roop
Ram (PW-3) and (PW-4) cousin brothers of
the deceased. The accused-respondents in
their examination under Section 313
Cr.P.C. have denied the prosecution case
and stated that they have been falsely
implicated. However, they admitted their
interse relationship.

7. The learned II Addl. District and
Sessions Judge, Budaun after considering
the submissions made by learned counsel
for the parties before him and examining
the evidence on record including the
statements of the PW-1 an PW-2 recorded
during the trial came to the conclusion that
the prosecution had failed to prove its case
258 INDIAN LAW REPORTS ALLAHABAD SERIES
against
the
accused-respondents
and
acquitted them.

8. Before we embark on testimony and
the judgment of the Court below, the
contours for interfering in Criminal Appeals
where accused has been held to be non guilty
would require to be discussed.

9. The principles which would govern
and regulate the hearing of an appeal by this
Court, against an order of acquittal passed by
the trial Court, have been very succinctly
explained by the Apex Court in catena of
decisions.
In
the
case
of
"M.S.
NARAYANA MENON @ MANI VS.
STATE OF KERALA & ANR", (2006) 6
S.C.C. 39, the Apex Court has narrated the
powers of the High Court in appeal against
the order of acquittal. In para 54 of the
decision, the Apex Court has observed as
under:

"54. In any event the High Court
entertained an appeal treating to be an appeal
against acquittal, it was in fact exercising the
revisional jurisdiction. Even while exercising
an appellate power against a judgment of
acquittal, the High Court should have borne
in mind the well settled principles of law that
where two view are possible, the appellate
Court should not interfere with the finding of
acquittal recorded by the Court below."

7. Further, in the case of
"CHANDRAPPA
Vs.
STATE
OF
KARNATAKA", reported in (2007) 4
S.C.C. 415, the Apex Court laid down the
following principles;

"42. From the above decisions, in
our considered view, the following general
principles regarding powers of the appellate
Court while dealing with an appeal against an
order of acquittal emerge:

[1] An appellate Court has full
power
to
review,
re-appreciate
and
reconsider the evidence upon which the
order of acquittal is founded.

[2]
The
Code
of
Criminal
Procedure,
1973
puts
no
limitation,
restriction or condition on exercise of such
power and an appellate Court on the
evidence before it may reach its own
conclusion, both on questions of fact and of
law.

[3] Various expressions, such
as,"substantial and compelling reasons",
"good and sufficient grounds", "very strong
circumstances", "distorted conclusions",
"glaring mistakes", etc. are not intended to
curtain extensive powers of an appellate
Court in an appeal against acquittal. Such
phraseologies are more in the nature of
"flourishes of language" to emphasis the
reluctance of an appellate Court to interfere
with acquittal than to curtail the power of
the Court to review the evidence and to
come to its own conclusion.

[4] An appellate Court, however,
must bear in mind that in case of acquittal
there is double presumption in favour of the
accused.
Firstly,
the
presumption
of
innocence is available to him under the
fundamental
principle
of
criminal
jurisprudence that every person shall be
presumed to be innocent unless he is
proved guilty by a competent Court of law.
Secondly, the accused having secured his
acquittal, the presumption of his innocence
is
further
reinforced,
reaffirmed
and
strengthened by the trial Court.

[5] If two reasonable conclusions
are possible on the basis of the evidence on
record, the appellate Court should not
disturb the finding of acquittal recorded by
the trial Court."
8. Thus, it is a settled principle that while
exercising appellate powers, even if two
reasonable views/conclusions are possible
on the basis of the evidence on record, the
appellate Court should not disturb the
2 All. State of U.P. Vs. Radhey Shyam & Ors.
259
finding of acquittal recorded by the trial
Court.

10. In the case titled "STATE OF
GOA Vs. SANJAY THAKRAN &
ANR.", reported in (2007) 3 S.C.C. 75,
the Apex Court has reiterated the powers of
the High Court in appeals against acquital.
In para 16 of the said decision, the Court
has observed as under:

"16.
From
the
aforesaid
decisions,
it
is
apparent
that
while
exercising the powers in appeal against the
order of acquittal the Court of appeal would
not ordinarily interfere with the order of
acquittal unless the approach of the lower
Court is vitiated by some manifest illegality
and the conclusion arrived at would not be
arrived at by any reasonable person and,
therefore,
the
decision
is
to
be
characterized as perverse. Merely because
two views are possible, the Court of appeal
would not take the view which would upset
the judgment delivered by the Court below.
However, the appellate Court has a power
to review the evidence if it is of the view
that the conclusion arrived at by the Court
below is perverse and the Court has
committed a manifest error of law and
ignored the material evidence on record. A
duty is cast upon the appellate Court, in
such circumstances, to re-appreciate the
evidence to arrive to a just decision on the
basis of material placed on record to find
out whether any of the accused is
connected with the commission of the
crime he is charged with."

11. Similar principle has been laid
down by the Apex Court in cases titled
"STATE OF UTTAR PRADESH VS.
RAM VEER SINGH & ORS.", 2007 A.I.R.
S.C.W. 5553 and in "GIRJA PRASAD
(DEAD) BY L.R.s VS. STATE OF MP",
2007 A.I.R. S.C.W. 5589. Thus, the
powers, which this Court may exercise
against an order of acquittal, are well
settled.

12. In the case of "LUNA RAM VS.
BHUPAT SINGH AND ORS.", reported
in (2009) SCC 749, the Apex Court in para
10 and 11 has held as under:

"10. The High Court has noted
that the prosecution version was not clearly
believable. Some of the so called eye
witnesses stated that the deceased died
because his ankle was twisted by an
accused.
Others
said
that
he
was
strangulated. It was the case of the
prosecution that the injured witnesses were
thrown out of the bus. The doctor who
conducted the postmortem and examined
the witnesses had categorically stated that it
was not possible that somebody would
throw a person out of the bus when it was
in running condition.

11. Considering the parameters of
appeal against the judgment of acquittal,
we are not inclined to interfere in this
appeal. The view of the High Court cannot
be termed to be perverse and is a possible
view on the evidence."

13. In a recent decision of the Apex
Court in the case titled "MOOKKIAH
AND ANR. VS. STATE, REP. BY THE
INSPECTOR OF POLICE, TAMIL
NADU", reported in AIR 2013 SC 321, the
Apex Court in para 4 has held as under:

"4. It is not in dispute that the
trial Court, on appreciation of oral and
documentary evidence led in by the
prosecution and defence, acquitted the
accused in respect of the charges leveled
against them. On appeal by the State, the
High Court, by impugned order, reversed
260 INDIAN LAW REPORTS ALLAHABAD SERIES
the said decision and convicted the accused
under Section 302 read with Section 34 of
IPC and awarded RI for life. Since counsel
for the appellants very much emphasized
that the High Court has exceeded its
jurisdiction in upsetting the order of
acquittal into conviction, let us analyze the
scope and power of the High Court in an
appeal filed against the order of acquittal.
This Court in a series of decisions has
repeatedly laid down that as the first
appellate court the High Court, even while
dealing with an appeal against acquittal,
was also entitled, and obliged as well, to
scan through and if need be reappreciate
the entire evidence, though while hoosing
to interfere only the court should find an
absolute assurance of the guilt on the basis
of the evidence on record and not merely
because the High Court could take one
more possible or a different view only.
Except the above, where the matter of the
extent and depth of consideration of the
appeal is concerned, no distinctions or
differences in approach are envisaged in
dealing with an appeal as such merely
because one was against conviction or the
other against an acquittal. [Vide State of
Rajasthan vs. Sohan Lal and Others, (2004)
5 SCC 573]"

14. It is also a settled legal position
that in acquittal appeals, the appellate Court
is not required to rewrite the judgment or to
give fresh reasonings, when the reasons
assigned by the Court below are found to
be just and proper. Such principle is laid
down by the Apex Court in the case of
"STATE
OF
KARNATAKA
VS.
HEMAREDDY", AIR 1981 SC 1417,
wherein it is held as under:

"...This Court has observed in
Girija Nandini Devi V. Bigendra Nandini
Choudhary (1967) 1 SCR 93:(AIR 1967 SC
1124) that it is not the duty of the Appellate
Court on the evidence to repeat the
narration of the evidence or to reiterate the
reasons given by the trial Court expression
of general agreement with the reasons
given by the Court the decision of which is
under appeal, will ordinarily suffice."

15.

The
Apex
Court
in
"SHIVASHARANAPPA & ORS. VS.
STATE OF KARNATAKA", JT 2013
(7) SC 66 has held as under:

"That
appellate
Court
is
empowered to reappreciate the entire
evidence, though, certain other principles
are also to be adhered to and it has to be
kept in mind that acquittal results into
double presumption of innocence."

16. Further, in the case of "STATE
OF PUNJAB VS. MADAN MOHAN
LAL VERMA", (2013) 14 SCC 153, the
Apex Court has held as under:

"The law on the issue is well
settled that demand of illegal gratification
is sine qua non for constituting an offence
under the 1988 Act. Mere recovery of
tainted money is not sufficient to convict
the accused when substantive evidence in
the case is not reliable, unless there is
evidence to prove payment of bribe or to
show that the money was taken voluntarily
as a bribe. Mere receipt of the amount by
the accused is not sufficient to fasten guilt,
in the absence of any evidence with regard
to demand and acceptance of the amount as
illegal gratification. Hence, the burden rests
on the accused to displace the statutory
presumption raised under Section 20 of the
1988 Act, by bringing on record evidence,
either direct or circumstantial, to establish
with reasonable probability, that the money
was accepted by him, other than as a
2 All. State of U.P. Vs. Radhey Shyam & Ors.
261
motive or reward as referred to in Section 7
of the 1988 Act. While invoking the
provisions of Section 20 of the Act, the
court
is
required
to
consider
the
explanation offered by the accused, if any,
only on the touchstone of preponderance of
probability and not on the touchstone of
proof
beyond
all
reasonable
doubt.
However, before the accused is called upon
to explain how the amount in question was
found in his possession, the foundational
facts
must
be
established
by
the
prosecution.
The
complainant
is
an
interested and partisan witness concerned
with the success of the trap and his
evidence must be tested in the same way as
that of any other interested witness. In a
proper case, the court may look for
independent
corroboration
before
convincing the accused person."

17. The Apex Court recently in
Jayaswamy vs. State of Karnataka,
(2018) 7 SCC 219, has laid down the
powers of appellate court in re-appreciating
the evidence in a case where the State has
preferred an appeal against acquittal, which
read as follows:

"10. It is by now well settled that
the Appellate Court hearing the appeal filed
against the judgment and order of acquittal
will not overrule or otherwise disturb the
Trial Court's acquittal if the Appellate
Court does not find substantial and
compelling reasons for doing so. If the
Trial Court's conclusion with regard to the
facts is palpably wrong; if the Trial Court's
decision was based on erroneous view of
law; if the Trial Court's judgment is likely
to result in grave miscarriage of justice; if
the entire approach of the Trial Court in
dealing with the evidence was patently
illegal; if the Trial Court judgment was
manifestly unjust and unreasonable; and if
the Trial Court has ignored the evidence or
misread the material evidence or has
ignored material documents like dying
declaration/report of the ballistic expert etc.
the same may be construed as substantial
and compelling reasons and the first
appellate court may interfere in the order of
acquittl. However, if the view taken by the
Trial Court while acquitting the accused is
one of the possible views under the facts
and
circumstances
of
the
case,
the
Appellate Court generally will not interfere
with the order of acquittal particularly in
the absence of the aforementioned factors.

.........................It is relevant to
note the observations of this Court in the
case of Ramanand Yadav vs. Prabhu Nath
Jha & Ors., (2003) 12 SCC 606, which
reads thus:

"21.There is no embargo on the
appellate court reviewing the evidence
upon which an order of acquittal is based.
Generally, the order of acquittal shall not
be interfered with because the presumption
of innocence of the accused is further
strengthened by acquittal. The golden
thread which runs through the web of
administration of justice in criminal cases
is that if two views are possible on the
evidence adduced in the case, one pointing
to the guilt of the accused and the other to
his innocence, the view which is favourable
to the accused should be adopted. The
paramount consideration of the court is to
ensure that miscarriage of justice is
prevented. A miscarriage of justice which
may arise from acquittal of the guilty is no
less than from the conviction of an
innocent. In a case where admissible
evidence is ignored, a duty is cast upon the
appellate
court
to
re-appreciate
the
evidence in a case where the accused has
been
acquitted,
for
the
purpose
of
ascertaining as to whether any of the
accused committed any offence or not."
262 INDIAN LAW REPORTS ALLAHABAD SERIES

18. The Apex Court recently in
Shailendra Rajdev Pasvan v. State of
Gujarat, (2020) 14 SC 750, has held that the
appellate court is reversing the trial court's
order of acquittal, it should give proper
weight and consideration to the presumption
of innocence in favour of accused, and to the
principle that such a presumption sands
reinforced, reaffirmed and strengthened by
the trial court and in Samsul Haque v. State
of Assam, (2019) 18 SCC 161 held that
judgment of acquittal, where two views are
possible, should not be set aside, even if view
formed by appellate court may be a more
probable one, interference with acquittal can
only be justified when it is based on a
perverse view.

19. We have perused the depositions of
prosecution witnesses, documentary evidence
supporting
ocular
versions,
arguments
advanced by learned counsel for the parties.
We have also perused the findings recorded
by the learned Sessions Judge.

20. From the perusal of the entire
evidence on record, it transpires that there are
serious contradiction in the oral and medical
evidence and the medical evidence is not in
conformity with the oral evidence adduced by
the prosecution. There is no overt act
perpetrated on any of the other accused and,
therefore,
we
cannot
agree
with
the
submission of learned A.G.A. for the State
that the judgment is perverse and requires to
be upturned.

21. While going through the finding of
facts it appears that PW4 Roop Ram was
very much inimical to PW1 Dori Lal and
both were entangled in litigation before this
incident and which settled after this incident.
It seems that PW4 might have lodged false
FIR in this matter as the deceased and her
family were not in talking terms with the
informant and the trial court has opined that
the relations between PW1 and PW4 were
very much strained and even PW4 did not
accept to be himself as the nephew of PW1
Dori Lal in his written statement submitted in
the litigation which was pending between
them. The story mentioned in the FIR that the
accused persons demanded dowry from PW4
seems to be completely false and the trial
court has not believed the statements of PW1,
PW2, PW3 and even PW4. The dying
declaration given to PW2 by the deceased
does not inspire any confidence. There is no
overt act perpetrated on any of the other
accused and, therefore, we cannot agree with
the submission of learned A.G.A. for the
State that the judgment is perverse and
requires to be upturned.

22. After considering the facts and
circumstances of the present case and
appraisal of the evidence available on record
and on the contours of the judgment of the
Apex Court, we have no other option but to
concur with the judgment of acquittal by the
the learned Sessions Judge.

23. The appeal sans merits and is
dismissed. The record and proceedings be
sent back to the Court below.
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(2023) 2 ILRA 262
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.12.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE RAHUL CHATURVEDI, J.

Government Appeal No. 1818 of 2004

State of U.P. ...Appellant
Versus
Laxmi Baniya & Anr.
 ...Accused-Respondents